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Friday, September 16, 2011

What’s in a question? – Avoiding discrimination in recruitment

Most of you will probably know that there are nine grounds on which you can’t discriminate against people.  There are two pieces of legislation which set this out: the Employment Equality Acts 1998-2008 and the Equal Status Acts 2000-2008 which between them outlaw discrimination in employment, vocational training, advertising, collective agreements, the provision of goods and services (including professional or trade services; health services; access to accommodation and education; facilities for banking, transport and cultural activities). Some of you will know all of those grounds and more will know at least a few.

Most of you will know that you shouldn’t discriminate against people in the workplace.  But how many of you are aware that job interviews and other elements of the recruitment process are also covered.

And what does that mean in reality?

Well take the situation where during the “chat” bit of an interview you ask the candidate…“So did you have any difficulty getting here this early?”

Not a problem on the face of it.  But say the person said no and you followed with “No children to get out to school then?” Or imagine asking “What did you do at the weekend?” and as a follow up you said “so you are young, free and single?”

This sounds pretty harmless, doesn’t it?  And what if you asked “Are you married?” or “Do you have any children?” in this same conversation.  Do you think that might be viewed as discriminatory?

The short answer is “Yes, absolutely”.

The problem is this – it doesn’t really matter what your intention was in asking the question, or that you didn’t use the information in a negative way, the fact that you asked the question is likely to be seen to be discriminatory in intent at an Equality Tribunal. Once that is established it is your job to defend your position.

And here’s the thing…it is almost impossible to defend yourself as an employer in that situation. 

So here are some tips to help you avoid / manage such a situation:

  1. Make sure that your Job Description and Advertisement (even if this is a Tweet) is free from any discriminatory language or inferred discrimination – for example don’t say “we are seeking a young, dynamic….”  You even need to be careful about the qualifications and length of experience required as it may be seen as age discrimination – so think long and hard about what is really required to do the job
  2. When you are shortlisting candidates don’t take into account things like age – it is advisable to have a clear set of criteria and to mark applications against that criteria
  3.  At interview don’t ask any question that isn’t relevant.  So for example you could in some instances ask a person about their ability to travel if this was a key requirement of the role
  4.  If you really need to ask this type of question ensure you ask it of everyone: male, female, married, single, old, young etc.
  5. Don’t ever ask about marital status, children, age etc (the nine grounds to be aware of are: Gender, Marital / Civil Status, Family Status, Sexual Orientation, Age, Disability, Race (Ethnicity), Religion or Membership of the Traveller Community)
  6. You should also have clear criteria for each interview stage – mark candidates against that and only that.  The more specific this is the easier it is to defend!
  7. Keep records of interview notes and marking sheets
  8. If you do end up facing a claim you will be asked to respond in writing to the Equality Tribunal – this document will play a key role in the decision so avoid incriminating yourself.  It is the claimant’s job to establish a case in the first instance so avoid doing the job for them!
  9. And if you do need to appear before a Tribunal seek advice quickly to ensure you have a defense (with all the necessary documentation, witnesses etc) in place as early as possible
  10. Remember that the penalties are significant: for someone who is not your employee (i.e. a candidate who feels they lost out because of discrimination) you can be required to pay compensation of up to €12,697 if the complaint is upheld – an expensive “chat” I think you’ll agree!!

So the moral of the story is this: make sure you have good policies and practices in place around recruitment (and your whole employment relationship), follow those policies and practices properly, be aware of what you are asking and why, and if you do get yourself into trouble seek help early.

If you have any questions on anything raised here feel free to contact me – I am always happy to help.

And if you want some interesting reading this recent case regarding a dismissal on the basis of incapacity is well worth a read http://bit.ly/nBkKba

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